Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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employers only when they “fail or refuse to hire,” “dis-
charge,” “or otherwise . . . discriminate against” someone
because of a statutorily protected characteristic like sex.
Ibid. The employers acknowledge that they discharged the
plaintiffs in today’s cases, but assert that the statute’s list
of verbs is qualified by the last item on it: “otherwise . . .
discriminate against.” By virtue of the word otherwise, the
employers suggest, Title VII concerns itself not with every
discharge, only with those discharges that involve discrim-
ination.
   Accepting this point, too, for argument’s sake, the ques-
tion becomes: What did “discriminate” mean in 1964? As
it turns out, it meant then roughly what it means today:
“To make a difference in treatment or favor (of one as com-
pared with others).” Webster’s New International Diction-
ary 745 (2d ed. 1954). To “discriminate against” a person,
then, would seem to mean treating that individual worse
than others who are similarly situated. See Burlington N.
& S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called
“disparate treatment” cases like today’s, this Court has also
held that the difference in treatment based on sex must be
intentional. See, e.g., Watson v. Fort Worth Bank & Trust,
487 U. S. 977, 986 (1988). So, taken together, an employer
who intentionally treats a person worse because of sex—
such as by firing the person for actions or attributes it
would tolerate in an individual of another sex—discrimi-
nates against that person in violation of Title VII.
   At first glance, another interpretation might seem possi-
ble. Discrimination sometimes involves “the act, practice,
or an instance of discriminating categorically rather than
individually.” Webster’s New Collegiate Dictionary 326
(1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting).
On that understanding, the statute would require us to con-
sider the employer’s treatment of groups rather than indi-
viduals, to see how a policy affects one sex as a whole versus
the other as a whole. That idea holds some intuitive appeal
8               BOSTOCK v. CLAYTON COUNTY Opinion of the Court

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